from the United States District Court for the Southern
District of Florida D.C. Docket No. 1:16-cr-20354-DMM-1
MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.
Jhonathan Tejas appeals his 366-day sentence of imprisonment
for theft of mail, in violation of 18 U.S.C. § 1708. On
appeal, he argues that the district court erred in applying a
few enhancements under the Sentencing Guidelines and in
refusing to give him a reduction for acceptance of
responsibility. We agree with Tejas that the enhancement for
the number of victims, which was based on the application of
a "special rule" in cases involving undelivered
mail, did not apply on the specific facts of this case, so we
vacate and remand for resentencing without that enhancement.
We affirm the district court in all other respects.
April 23, 2016, Tejas took an express mail package from the
front seat of a United States Postal Service
("USPS") delivery vehicle and then ran off. Tejas
had approached the vehicle and the USPS mail carrier to ask
about the package, which he claimed was his. But because he
was unable to produce ID which matched the name and address
on the package, the mail carrier
refused to release it to him. Instead, she put the package in
the front of her vehicle and closed the door. Soon after,
according to the mail carrier, Tejas grabbed her and slammed
her into a nearby cluster mailbox, opened the door, took the
package, and then ran off.
was indicted on three counts: robbery of a postal employee,
in violation of 18 U.S.C. § 2114(a), assaulting a postal
employee, in violation of 18 U.S.C. § 111(a)(1), and
theft of mail, in violation of 18 U.S.C. § 1708. Tejas
pled not guilty and proceeded to trial. At trial, Tejas
conceded that he had taken the package, but he disputed
assaulting or harming the mail carrier. The jury found him
guilty of theft of mail but not guilty of robbery and
sentencing, a probation officer prepared a presentence
investigation report ("PSR") and calculated
Tejas's guideline range using the 2015 Guidelines Manual.
The probation officer applied several sentencing
enhancements. Specifically, Tejas received (i) a two-level
enhancement for an offense involving ten or more victims,
under § 2B1.1(b)(2)(A)(i), based on a "special
rule" in the commentary to § 2B1.1 which provides
that theft of undelivered mail from a postal delivery vehicle
"shall be considered to have involved at least 10
victims"; (ii) a two-level enhancement, under §
2B1.1(b)(3), because the offense involved theft from the
person of another; and (iii) a three-level enhancement, under
§ 3A1.2(a), because the victim was a government officer
or employee and the offense was motivated by that status. The
probation officer calculated a total offense level of 13,
which, combined with Tejas's criminal history category of
I, established a recommended sentencing guideline range of 12
to 18 months of imprisonment.
objected to each of the enhancements. He also sought a
reduction for acceptance of responsibility, claiming that he
had never denied committing the only offense of which he was
Tejas's sentencing, the district court heard argument
from the parties on the objections. Ultimately, the court
overruled Tejas's objections and adopted the guideline
range recommended by the PSR. With regard to the number of
victims, the court found that the special rule applied,
despite agreeing with defense counsel's assertion that
Tejas "only came in contact with . . . one very specific
piece of mail." With regard to the enhancement for theft
"from the person of another, " the court credited
the mail carrier's testimony that Tejas pushed her aside
before grabbing the package from the front of the delivery
van. With regard to the "official victim"
enhancement, the court found the facts of this case
comparable to our decision in United States v.
Bailey, 961 F.2d 180 (11th Cir. 1992), where we upheld
application of the enhancement. Finally, the court found that
a reduction for acceptance of responsibility was not
warranted because Tejas went to trial, and he denied pushing
the mail carrier.
district court sentenced Tejas to 366 days' imprisonment.
Tejas now appeals.
review de novo the interpretation and application of
the Guidelines, and we review underlying factual findings for
clear error. United States v. Rodriguez, 732 F.3d
1299, 1305 (11th Cir. 2013). For a factual finding to be
clearly erroneous, we must be left with a definite and firm
conviction that the court made a mistake. United States
v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010).
in the Sentencing Guidelines is given its plain and ordinary
meaning. United States v. Fulford, 662 F.3d 1174,
1177 (11th Cir. 2011). "The guidelines commentary is
authoritative unless it violates the Constitution or a
federal statute, or is inconsistent with, or a plainly